Citation Nr: 0710847
Decision Date: 04/12/07 Archive Date: 04/25/07
DOCKET NO. 02-14 188 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for a psychiatric
disorder.
2. Entitlement to service connection for obstructive sleep
apnea.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
Raymond F. Ferner, Counsel
INTRODUCTION
This matter originally came before the Board of Veterans'
Appeals (BVA or Board) on appeal from an April 2002 rating
decision of the Department of Veterans Affairs (VA) Regional
Office (RO) in St. Petersburg, Florida, that denied the
benefits sought on appeal. The veteran, who had active
service from February 1963 to February 1966, appealed that
decision to the BVA, and the case was referred to the Board
for appellate review. In February 2006, the Board returned
the case for additional development, and following
accomplishment of the requested development, the case was
returned to the Board for further appellate review.
At the time of the February 2006 BVA decision an additional
issue of entitlement to an increased evaluation for the
veteran's lumbosacral strain with traumatic arthritis was
before the Board. The Board issued a final decision with
respect to that issue. Consequently, that matter is no
longer before the Board and will not be addressed in this
decision.
FINDINGS OF FACT
1. A psychiatric disorder was not manifested during service
or for many years following separation from service, and is
not shown to be causally or etiologically related to service
or to a service-connected disability.
2. Obstructive sleep apnea was not manifested during service
or for many years following separation from service, and is
not causally or etiologically related to service or to a
service-connected disability.
CONCLUSIONS OF LAW
1. A psychiatric disorder was not incurred in or aggravated
by active service, nor may a psychosis be presumed to have
been so incurred, and is not proximately due to or the result
of a service-connected disease or injury.
38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1154,
5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159,
3.303, 3.304, 3.307, 3.309, 3.310 (2006).
2. Obstructive sleep apnea was not incurred in or aggravated
by active service, and is not proximately due to or the
result of a service-connected disease or injury.
38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West
2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Before addressing the merits of the veteran's claims on
appeal, the Board is required to ensure that the VA's "duty
to notify" and "duty to assist" obligations have been
satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002);
38 C.F.R. § 3.159 (2006). The notification obligation in
this case was accomplished by way of letters from the RO to
the veteran dated in February 2004, March 2005 and September
2006. The RO also provided assistance to the veteran as
required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c),
as indicated under the facts and circumstances in this case.
Furthermore, the veteran and his representative have not made
the RO or the Board aware of any additional evidence that
needs to be obtained in order to fairly decide this appeal,
and have not argued that any error or deficiency in the
accomplishment of the duty to notify and duty to assist has
prejudiced him in the adjudication of his appeal. Mayfield
v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other
grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006). Therefore,
the Board finds that duty to notify and duty to assist have
been satisfied and will proceed to the merits of the
veteran's appeal.
The veteran essentially contends that he has a psychiatric
disorder and sleep apnea that are related to service. More
specifically, the veteran contends that his psychiatric
disorder and sleep apnea are due to his service-connected
lumbar spine disability. The veteran maintains that because
of continual low back pain and an inability to function due
to his back disability he has depression and sleep apnea.
The veteran also suggested in his Substantive Appeal that his
sleep apnea was secondary to his respiratory disorder, his
service-connected tonsillitis.
Under VA laws and regulations, service connection will be
granted if it is shown that a veteran has a disability
resulting from an injury or disease contracted in the line of
duty, or for aggravation of a preexisting injury or disease.
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304.
Service connection may also be granted for certain chronic
diseases, such as a psychosis, when such disease is
manifested to a compensable degree within one year of
separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113,
1137; 38 C.F.R. §§ 3.307, 3.309. Furthermore, a disability
which is proximately due to or the result of a
service-connected disease or injury shall be service
connected. 38 C.F.R. § 3.310.
Service connection may also be granted for any disease
diagnosed after discharge, when all of the evidence,
including that pertinent to service, establishes that a
disease was incurred in service. 38 C.F.R. § 3.303(d).
Generally, to prove service connection the record must
contain: (1) Medical evidence of a current disability, (2)
medical evidence or in certain circumstances, lay testimony,
of an inservice incurrence or aggravation of an injury or
disease, and (3) medical evidence of a nexus between any
current disability and the inservice disease or injury.
Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown,
7 Vet. App. 498 (1995).
Turning to the merits of the veteran's claims, the veteran's
service medical records contain no evidence of complaints,
treatment or diagnosis of a psychiatric disorder or of
obstructive sleep apnea during service, and medical records
dated following separation from service show that both
disorders were first manifested many years following
separation from service. In fact, at the veteran's personal
hearing testimony was offered that the veteran was first
diagnosed with a bipolar disorder in 1996. Transcript at 13.
This would be consistent with the veteran's contentions that
both a psychiatric disorder and obstructive sleep apnea are
due to a service-connected disability.
Further review discloses that service connection has been
established for a lumbar strain with traumatic arthritis, for
tonsillitis and for skin thickening from chemical burns on
the hands, feet and knees. The record also reflects that the
veteran has been diagnosed with various psychiatric diagnoses
as well, as sleep apnea. For example, a private medical
record dated in September 1995 diagnosed the veteran as
having an adjustment disorder with depressed mood and anxiety
attacks, while a private medical record dated in February
2001 diagnosed the veteran as having severe recurrent major
depression and a chronic pain disorder. A statement from a
private psychologist dated in July 2001 indicated that the
veteran's file had been reviewed and the diagnostic category
that best fit was a bipolar disorder with psychotic features.
In addition, a private medical record dated in July 1996
contained an impression of severe obstructive sleep apnea.
While the record before the Board shows that service
connection has been established for a lumbar spine disability
and for tonsillitis and that the veteran has been diagnosed
as having various psychiatric diagnoses as well as sleep
apnea, there is no medical evidence that suggests that a
psychiatric disorder or sleep apnea are in any way related to
a service-connected disability.
In order to assist the veteran he was afforded VA
examinations in February 2002 in order to determine the
etiology of the veteran's psychiatric disorders and his sleep
apnea and any relationship they may have to the veteran's
service-connected back disability. However, neither VA
examination provides any support for the veteran's
contentions.
The February 2002 VA psychiatric examination reflects that
the veteran's claims file was reviewed prior to the
examination. Following the review and the examination, the
examiner indicated that while the veteran claimed depression
secondary to chronic low back pain the examiner indicated
that it was as likely as not connected to another cause. The
examiner explained that the veteran had displayed clear
symptoms of mania and psychosis, although the veteran denied
such symptoms, the examiner noted that they had been well
documented in medical records. While the examiner conceded
that chronic back pain may contribute to a depressed mood it
was likely that the veteran had an underlying bipolar
disorder.
The veteran was also afforded a VA respiratory examination in
February 2002 following which the examiner explained low back
trauma was not a known cause of sleep apnea. The examiner
went on to explain that obstructive sleep apnea was believed
to occur because of local fat accumulation in the tracheal
pharyngeal area and that the veteran's body habitus was
typical of individuals with sleep apnea.
Based on this record, the Board finds that the medical
evidence is against the veteran's claims for service
connection for a psychiatric disorder and for sleep apnea.
Given the medical evidence against the claim, for the Board
to conclude that the veteran's disorders had an origin during
service in these circumstances would be speculation, and the
law provides that service connection may not be based on
resort to speculation or remote possibility. 38 C.F.R. §
3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993). Simply
put, in the absence evidence of present disabilities that are
related to service or to a service connected disability, a
grant of service connection is clearly not supportable. See
Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).
The veteran was advised of the need to submit medical
evidence demonstrating a nexus or relationship between a
psychiatric disorder and sleep apnea and service or his
service connected disability by way of letters from the RO to
him, but he has failed to do so. A claimant has the
responsibility to present and support a claim for benefits
under laws administered by the VA, 38 U.S.C.A. § 5107(a), and
the veteran was clearly advised of the need to submit medical
evidence of a relationship between a current disability and
service or to his service connected disability. While the
veteran is clearly of the opinion that his current
psychiatric disorder and sleep apnea are related to his
service connected disability, as a lay person, the veteran is
not competent to offer an opinion that requires specialized
training, such as the etiology of a medical disorder.
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).
Accordingly, the Board concludes that service connection for
a psychiatric disorder and sleep apnea is not established.
ORDER
Service connection for a psychiatric disorder is denied.
Service connection for obstructive sleep apnea is denied.
____________________________________________
Joaquin Aguayo-Pereles
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs